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Friday, March 10, 2017

Earlier this week, the U.S. Supreme Court reversed course
and sent a case
that it had previously accepted for review, Gloucester
County School Board v. G.G., back to the lower appellate court. The case
involves the question of whether a Virginia high school must, under the
anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom
access based on his gender identity rather than his anatomy. When the case was
accepted for review by the Supreme Court, one of the legal questions up for
review was whether a 2016 U.S. Department of Education (DOE) guidance document stating
that Title IX prohibits transgender discrimination and requires restroom access
based on gender identity was entitled to judicial deference. This guidance was
issued under the Obama administration, and, under the Trump administration, was
recently withdrawn.
As a result, the Supreme Court remanded the Gloucester
case back to the lower appellate court for further consideration.

You might ask what impact a Supreme Court ruling in the Gloucester high school case could have
had on employment law. The answer is, more than you might think. The law at
issue in Gloucester, Title IX
of the Education Amendments Act of 1972, prohibits sex discrimination in
education, while Title
VII of the Civil Rights Act of 1964 prohibits sex discrimination in
employment. Federal courts routinely look to Title VII cases when interpreting
Title IX cases and, similarly, Title IX restroom cases can have a persuasive effect
on a federal court analyzing a Title VII employment case. In addition, like the
DOE had done under Title IX, the Equal Employment Opportunity Commission (EEOC)
adopted the position under the Obama administration that Title VII’s “sex”
discrimination prohibitions extend to transgender individuals and that workplace
restroom access should be based on gender identity. Unlike the DOE, the EEOC
has not issued any formal change in this position, although such a change could
be forthcoming.

In the face of the recent DOE and EEOC activity related to
transgender restroom rights, court battles have been and are continuing to be forged
around the country on transgender restroom access rights. Because these court
cases are resulting in contradictory outcomes, education institutions and employers
have been closely watching the Gloucester
case to see if the Supreme Court would issue a ruling providing more legal
certainty. Now that the case has been remanded by the Supreme Court, employers
will need to continue watching the legal developments in lower federal courts
with jurisdiction over their areas of operation to determine federal law
compliance obligations.

In addition, employers need to be mindful of state law
requirements. Currently, a minority of states include transgender status as a
protected class under state employment discrimination laws. Minnesota is among
that minority. The Minnesota Human Rights Act (MHRA) expressly prohibits
discrimination on the basis of gender identity, meaning one’s conformance or
nonconformance to one’s sex at birth. As such, under Minnesota law, it is
unlawful to discriminate against an individual or permit unlawful harassment
based on transgender status.

When it comes to restroom access, however, Minnesota legal
authority is mixed. In 2001, the Minnesota Supreme Court ruled that the MHRA
does not require an employer to allow a transgender employee to use the restroom
associated with the employee’s gender identity and may premise restroom access
on anatomy. However, thiscase, Goins v. West Group, was issued
prior to more recent EEOC efforts to expand Title VII to cover transgender
discrimination. Accordingly, while Goins is
still currently good law, the holding in the case could be susceptible to future
challenges and legal review. Following the Goins
case, a Minnesota federal district court held in 2002 that an employer that
chooses to grant restroom access based on gender identity does not create an
actionable hostile environment for other employees (See Cruzan v. Special School District, #1).

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